Can species be saved without the Endangered Species Act?

Jonathan Wood

1 year ago

That’s the question posed in a post on Vice.com‘s Motherboard blog. The answer is emphatically “yes.”

The question has to be asked because many environmental groups insist on setting up a false choice between whatever current environmental policy is and nothing. If you believe their fundraising letters, our only choices are the burdensome regulations we currently have or an environmental wasteland where species have no protection and polluters will have free reign to spoil the air and water.

Thankfully, that’s not remotely true. There are many different ways to address environmental problems, each with different costs and benefits. Refusing to acknowledge or consider the tradeoffs that different approaches entail does us all a disservice.

So what are those alternatives?

Federalism. States can take the lead in protecting species. This approach has a lot to recommend it. Unlike the federal government, states have a broad police power to regulate to protect the environment. The Endangered Species Act, however, exceeds the federal government’s constitutional powers and is vulnerable to constitutional challenge. States have greater local knowledge and can develop strategies that might not occur to distant bureaucrats in Washington. States are more accountable to citizens and therefore more likely to strike a balance between costs and benefits. And states are able to experiment with different approaches, which can lead to new solutions that might not have been tried otherwise.

Many environmentalists respond in horror to any suggestion that states should take the lead on protecting species, claiming that states are hostile to species and would never do it. This is surprising since the same groups regularly release poll results claiming that voters (especially those in red states) overwhelmingly support protecting endangered species. Assuming these results aren’t bogus, why wouldn’t state officials respond to this overwhelming voter preference?

Of course, many states do protect species. One of the best recent developments in this area has been the activity of states to proactively protect species—using voluntary programs—to avoid a federal listing. The early evidence from these programs suggest that they are far more effective than the statute.

Compact Clause. Arguments that states can’t protect the environment because of the “race to the bottom”—that interstate competition forces them to lower regulation to attract industry—are greatly overstated. But suppose that there was a race to the bottom in species protection. The states and the federal government have an effective means to deal with this problem. The Compact Clause allows states to enter into binding agreements, with the consent of Congress. A compact would be an effective commitment device for states to mutually agree to all protect species and thereby avoid the “prisoner’s dilemma” that could lead to a race to the bottom.

Taxing and Spending Clause. The federal government could also facilitate state protection of species using its spending clause power. This power allows Congress, within limits, to condition federal funds on states complying with specified federal policies. It could also use this power to encourage private parties to conserve species. To some extent, it already does. The federal tax code provides an incentive for property owners to grant conservation easements which limit the future use of property to protect the environment. This incentive could be increased for conservation easements to protect species.

Financial incentives can be extremely effective. For instance, the Nature Conservancy has paid California rice farmers to change when they flood their fields to provide popup wetlands for migratory birds. Defenders of Wildlife paid ranchers for livestock lost to wolf predation to discourage them from taking them in defense or anticipated defense of livestock. Innovative programs like this transform rare species on one’s property from a liability to a financial benefit.

Private, voluntary conservation. These examples also highlight the possibility that environmental groups can fund private, voluntary conservation. By requiring the supporters of environmental protection to bear the costs, we’re more likely to get a reasonable balance between conservation and economic activity. We can see these tradeoffs playing out when an environmental group sells off land or renegotiates a conservation easement because the money obtained could achieve better conservation results if put elsewhere. In effect, the environmental groups are showing that the opportunity costs of a particular restriction exceed its benefits. This would also create good incentives for environmental groups, as funding would shift towards reasonable environmental groups who could demonstrate results and away from those who measure success by the productive activity they’ve frustrated.

Property Clause. The federal government could also focus the protection of endangered species on federal land. A federal-lands focused strategy would shift the burden of providing the public benefit of species protection on the public generally. This is precisely the purpose served by the Constitution’s Takings Clause. As the Supreme Court has explained, that clause “was designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” Although, in theory, imposing the costs of species protection on the government should encourage it to responsible balance tradeoffs. this will not necessarily be the case. The bureaucrats who make decisions about federal lands do not themselves bear the cost for overregulating them.

Endangered Species Act light. An alternative to the Endangered Species Act need not be as transformative as those mentioned above. There are many ways that the government could reduce the regulatory impact of the statute without sacrificing species protection, some of which would likely benefit species.

The point is that there are a vast number of options between the two extremes of no environmental protection and an overly burdensome command-and-control approach like that relied upon by the Endangered Species Act. Knee-jerk opposition to any change does a disservice to everyone—property owners, industry, and, most importantly, species.